Red Lake Nation News - Babaamaajimowinan (Telling of news in different places)

Indian Child Welfare Act held unconstitutional


March 21, 2019

The constitutionality of the Indian Child Welfare Act (ICWA) is being called into question in an ongoing case, can you tell us more about the act and the case?

ICWA was passed in 1978 to counteract what Congress perceived to be abusive child welfare practices. Through adoption and foster care placement, large numbers of Indian children were removed from their families and tribes and placed into non-Indian homes. Under ICWA, when a child is adopted or placed into foster care, a preference is given to (1) a member of the child’s family, (2) a member of the child’s tribe or (3) any Indian family. In addition, state courts must generally transfer the case to the child’s tribal court. In Brackeen v. Bernhardt, three states — Indiana, Louisiana, and Texas — and seven individuals — adoptive parents and potential adoptive parents of tribal children — filed suit in a Texas federal court, arguing that ICWA and its related administrative regulations violate the United States Constitution. Judge Reed O’Connor agreed, concluding that ICWA is based on unconstitutional racial classifications.


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